DEPARTMENT OF DEFENSE DEFENSE LANGUAGE INSTITUTE FOREIGN LANGUAGE CENTER MONTEREY, CALIFORNIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1263, AFL-CIO

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

MEMORANDUM DATE: September 29,
2006

TO: The Federal Labor Relations
Authority

FROM: SUSAN E. JELEN

Administrative Law Judge

SUBJECT: DEPARTMENT OF
DEFENSE

DEFENSE LANGUAGE
INSTITUTE

FOREIGN LANGUAGE CENTER

MONTEREY, CALIFORNIA

Respondent

and Case No.
SF-CA-05-0269

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 1263,
AFL-CIO

Charging Party

Pursuant to section 2423.34(b) of
the Rules and Regulations 5 C.F.R. § 2423.34(b), I am hereby
transferring the above case to the Authority. Enclosed are copies
of my Decision, the service sheet, and the transmittal form sent to
the parties. Also enclosed are the transcript, exhibits and any
briefs filed by the parties.

Enclosures

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

DEPARTMENT OF DEFENSE

DEFENSE LANGUAGE
INSTITUTE

FOREIGN LANGUAGE CENTER

MONTEREY, CALIFORNIA

Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 1263,
AFL-CIO

Charging
Party

Case No. SF-CA-05-0269

NOTICE OF TRANSMITTAL OF
DECISION

The above-entitled case having been
heard before the undersigned Administrative Law Judge pursuant to
the Statute and the Rules and Regulations of the Authority, the
undersigned herein serves her Decision, a copy of which is attached
hereto, on all parties to the proceeding on this date and this case
is hereby transferred to the Federal Labor Relations Authority
pursuant to 5 C.F.R. § 2423.34(b).

PLEASE BE ADVISED that the filing
of exceptions to the attached Decision is governed by 5 C.F.R. §§
2423.40-41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and
2429.27.

Any such exceptions must be filed
on or before

OCTOBER 30, 2006, and addressed to:

Office of Case Control

Federal Labor Relations
Authority

1400 K Street, NW,
2ndFloor

Washington, DC 20005

SUSAN E. JELEN

Administrative Law Judge

Dated: September 29,
2006

Washington, DC

OALJ 06-36

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.

DEPARTMENT OF DEFENSE

DEFENSE LANGUAGE
INSTITUTE

FOREIGN LANGUAGE CENTER

MONTEREY, CALIFORNIA

Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 1263,
AFL-CIO

Charging
Party

Case No. SF-CA-05-0269

Stefanie Arthur, Esq.

For the General
Counsel

Jere Diersing, Esq.

For the Respondent

Philip White

For the Charging
Party

Before: SUSAN E. JELEN

Administrative Law
Judge

DECISION

Statement of the Case

This is an unfair labor practice
proceeding under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (the Statute), and the Rules and
Regulations of the Federal Labor Relations Authority (the
Authority), 5 C.F.R. part 2423.

On March 9, 2005, the American
Federation of Government Employees, Local 1263, AFL-CIO (Union or
Local 1263) filed an unfair labor practice charge in this matter
against the Department of Defense, Defense Language Institute,
Foreign Language Center, Monterey, California (Respondent or DLI).
(G.C. Ex. 1(a)). On January 10, 2006, the Regional Director of the
San Francisco Region of the Authority issued a Complaint and Notice
of Hearing, which alleged that the Respondent violated section
7116(a)(1) and (5) by failing and refusing to comply with the
provisions of an oral agreement entered into with the Union. (G.C.
Ex. 1(b)). On February 6, 2006, the Respondent filed an answer to
the complaint in which it admitted certain allegations of the
complaint while denying the substantive allegations of the
complaint. (G.C. Ex. 1(d)).

A hearing was held in Monterey,
California on March 27 and 28, 2006, at which time all parties were
afforded a full opportunity to be represented, to be heard, to
examine and cross-examine witnesses, to introduce evidence and to
argue orally. The General Counsel (GC) and the Respondent have
filed timely post-hearing briefs which I have fully
considered.887236217

Based upon the entire record,
including my observation of the witnesses and their demeanor, I
make the following findings of fact, conclusions and
recommendations.

Statement of the Facts

The Department of Defense, Defense
Language Institute, Foreign Language Center, Monterey, California
(Respondent or DLI) is an agency under 5 U.S.C. § 7103(a)(3).
(G.C. Ex. 1(b) and 1(d)) During the time covered by this
complaint, Col. Michael R. Simone was the Commandant of Respondent;
Ray T. Clifford was Provost and later
Chancellor;118990757and Dr. Stephen D. Payne was Vice Chancellor and later Acting
Chancellor. (G.C. Ex. 1(b) and 1(d)). Respondent admits that
during the period covered by this complaint, the above individuals
were supervisors or management officials under 5 U.S.C. §
7103(a)(10) and (11), acting on behalf of the Respondent. (G.C.
Ex. 1(b) and 1(d)) The Commandant is the commanding officer for
DLI and also serves as the installation Commander of the Presidio
and the remaining military community at Ford Ord. (Tr. 196, 197)
During Colonel Simone's tour as Commandant, Colonel Sandra Wilson
and later Colonel Daniel Scott served as Assistant Commandants.
(Jt. Ex. 10; Tr. 198)

The American Federation of
Government Employees, Local 1263, AFL-CIO (Union or Local
1263)986744044is a labor organization under 5 U.S.C. § 7103(a)(4) and is the
certified exclusive representative of a unit of employees
appropriate for collective bargaining at the Respondent. (G.C. Ex.
1(b) and 1(d)) This bargaining unit includes approximately 1200
faculty members, as well as about 600 support and other personnel
at DLI and the Presidio of Monterey, such as members of the police
department and employees of the child care center. (Tr. 19) Alfie
Khalil, an Assistant Professor at Respondent, has been the Union's
President since 1987. (Tr. 18, 19) Dr. Phil White, an Associate
Professor at Respondent, has been the Union's Chief Steward since
1996. (Tr. 357, 358)

The DLI is a language training
center, with the responsibility ". . . to produce more proficient
linguists in support of Department of Defense missions and national
security needs . . . ." (Jt. Ex. 1) For several years, the
Respondent, with the agreement of the Union, had sought to change
its pay system to a contributions-based system. (Tr. 93-94) In
1992, Title 10, United States Code, Chapter 81, Section 1595 was
amended to authorize a faculty pay system for DLI. On November 15,
1996, the DoD issued its implementing regulation, approving the
Faculty Pay System (FPS)1032586743and delegating authority to implement FPS to Respondent. (Jt.
Ex. 1)

The implementing regulation sets
forth the following purpose:

The Faculty Pay System (FPS) of the
Defense Language Institute Foreign Language Center (DLIFLC)
provides for paying FPS faculty by applying a contributions-based
system to a formal academic rank-in-person concept. This plan
enhances DLIFLC's capabilities to produce more proficient linguists
in support of Department of Defense missions and national security
needs by permitting it to attract and retain the best professional
faculty available. This plan covers all DLIFLC civilian faculty
who are appointed on or after the implementation date and those who
elected to convert to the FPS during the open season. DLIFLC
employees who do not convert to the FPS during the open season may
subsequently enter the FPS only through competition.

(Jt. Ex. 1, p. 3, number
1)

Under theResponsibilities and Administrationsection, the enabling regulations states:

The Commandant, DLIFLC, is
responsible for executing the plan. The commandant shall develop
necessary operating guidance or other internal requirements
consistent with this plan.

(Jt. Ex. 1, p. 3, number 3
)

Upon receipt of the DoD regulation,
the Respondent and the Union entered into negotiations and on
November 25, 1996, entered into a final agreement providing for the
implementation of the FPS at DLI. The FPS Handbook sets out the
general principles and procedures underlying FPS, such as the
faculty rank structure and salary administration, as well as
procedures for an open season during which faculty members could
choose to transfer to FPS or remain as GS employees. (Jt. Ex. 2)
In February 2000, a new FPS Handbook was issued which no longer
contained the transition procedures. (Jt. Ex. 4; Tr.
30)578103428

Both Handbooks contain the
following section related to responsibilities:

A. DLIFLC Commandant. The
Commandant, by virtue of delegated authority directly from DoD, is
responsible for all actions associated with the development,
implementation, and on-going operation of the FPS. The Commandant
may delegate authority to develop and implement those policies and
procedures to other offices.

B. Provost. Under the direction
of the Commandant, the Provost manages and administers the FPS.
The Provost may delegate portions of this authority to other
offices.

In October 1996, before the DoD's
November issuance and the subsequent negotiations on the Handbook,
Khalil and Dr. Clifford entered into a Transition Period Agreement,
in which they agreed that during the transition period that would
run until February 28, 2001, ". . . FPS Charter members who
consistently meet performance expectations should not be
financially disadvantaged for having left the GS system in either
total annual or base pay." (Jt. Ex. 5) According to Dr. Clifford,
the transition period agreement was his method of insuring that
employees taking the risk of transferring into the new system, "who
voluntarily gave up the guarantees that they had under the General
Schedule, or standard civil service, to join this brand new
untested Faculty Pay System", would not be financially harmed by
their choice. (Tr. 96-97) This would enable the parties to
respond to every situation that would arise in the implementation
of the new pay system. (Tr. 97) The transition period was
extended for an additional three years beginning January 1, 2002
(Jt. Ex. 6) and an additional four years beginning on January 1,
2004. (Jt. Ex. 7) The transition period remains in effect at this
time. (Tr. 27)

Summary of the FPS Merit Pay
Process

Jt. Ex. 9 contains the agreement of
the parties concerning a summary of the FPS merit pay
process.

FPS was implemented at DLI in 1997.
Faculty members working at DLI in 1996 who transferred into the
FPS are identified as "Charter Members." Since 1997, all faculty
members are hired into the FPS.

Each faculty members (sic) holds
one of the followingacademic
ranks: Assistant Instructor, Instructor,
Senior Instructor, Assistant Professor, Associate Professor,
Professor. For the Instructor and Assistant Professor ranks, FPS
provides a process for rank advancement upon completion of
qualification criteria with approval of the supervising School
Dean. FPS has a separate process for competitive rank advancement,
using Rank Advancement Boards, for the Associate Professor and
Professor ranks.

Each academic rank has a pay range
which specifies the minimum and maximum salary that can be paid to
an FPS member holding that rank. For example, the FPS Salary
Schedule for 2005 was as follows:

Assistant Instructor $24,677 -
$34,896

Instructor $30,567 -
$43,221

Senior Instructor $37,390 -
$57,688

Assistant Professor $37,390 -
$65,431

Associate Professor $45,239 -
$78,426

Professor $54,221 -
$106,673

At the beginning of each year, pay
increases are determined through a performance point system in
whichcontribution points(merit points) are given to each employee based on
the employee's annual performance evaluation and other
accomplishments. These contribution points are distributed by the
Dean of each School and by Merit Pay Boards which are convened for
each academic rank for each School or academic area.

Each year, the number of
contribution points is translated into apercentage of salarythat is the
employee's annualmerit payamount. For example, in 2005, the following
schedule was in place:

Merit Points:

1 2 3 4 5 6 7 8 9
10

Merit Pay:

1% 2% 3.9% 5.10% 6.3% 7.5% 8.7%
9.9% 11.10% 12.30%

Using a formula based on where the
employee's salary falls along the pay range continuum for his or
her academic rank, a determination is made as to what portion of
the merit pay will go intobase payand what portion will be paid to the employee as
aone time cash bonus. Once the employee reaches the maximum salary for his or her
rank, base salary does not increase; the year's merit pay is given
all as cash bonus.**

** This is a simplified version of
the FPS merit pay process focusing on specific issues relevant to
this ULP. Base salary may also increase for other
reasons.

(Jt. Ex. 9)

Previous Adjustments to
FPS

In February 2001, several faculty
members were informed that their contributions-based increase
exceeded the academic pay band for their specific rank, either
Associate Professor or Assistant Professor. The employees were
informed that DLI did not have the authority to set basic pay above
the maximum rate of the appropriate pay bands. They were informed
that their merit pay would be changed from salary to bonus. (Jt.
Ex. 11) Employees filed grievances over this correction. A
settlement agreement was signed by Dr. Clifford and representatives
of the Union in which grievants were advanced to the next rank,
either Professor from Associate Professor or Associate Professor
from Assistant Professor. (Jt. Ex. 11)

Also in January 2001, as a result
of the inclusion of Monterey in the San Francisco locality pay area
which increased the salary for GS grades, a number of employees
were advanced administratively to the next rank. These ranks were
designated as "charter" in their title. The following criteria
were used to determine which employees would be
affected:

1) DLIFLC is still within the FPS
transition period,

2) You are a charter member of
FPS,

3) DLIFLC has not reached the
maximum allocations for the Professor and Associate Professor ranks
(15% and 25% respectively),

4) The base pay portion of the
merit pay you have earned this year raises your base salary above
the top of your 2001 FPS pay band, and

5) The salary cap for your
previous GS permanent grade, using the 2001 salary table for the
locality pay area of San Francisco, exceeds the top of your current
FPS pay band.

(G.C. Exs. 4; Tr. 34-35) According
to Dr. Clifford, the rationale for this administrative rank
advancement was that charter members should not be financially
disadvantaged for having volunteered to join the new system. (Tr.
106)

In June 2003, Khalil and Dr.
Clifford signed a settlement agreement concerning grievances that
had been filed concerning the appropriate pay for Assistant
Professors who had been advanced from an "instructor" rank with no
adjustment to their annual salary. DLI agreed to adjust the listed
employees' annual salary. This agreement was found legally
sufficient by an Agency legal counselor. (G.C. Ex. 5; Tr.
107-108)

And in 2004, another issue came up
regarding faculty who had been competitively promoted. These
employees had not received pay increases at the time of their
promotions per FPS policy. As a result, Dr. Clifford indicated
that some of their best faculty advanced in rank so fast that they
were not able to keep up with their colleagues in terms of salary.
DLI therefore increased their pay salary to put it in line with
what their salary would have been if they had been hired from
outside. There was no written agreement on this issue and it was
implemented mid-year. (Tr. 108-111)

Union Proposal Regarding
FPS

In March 2004, the Union raised the
issue regarding administrative rank advancement for charter
members. The Union was concerned that a number of employees had
reached the top of their pay band, where there was limited money
for base pay. (Tr. 43-44) According to the Union, high performers
who have received merit points reach the top of the pay band faster
than other employees. Therefore, with only a limited amount of
money available for increases to base pay, those employees, while
receiving bonuses, start losing money to base pay, which has an
impact on contributions to TSP and retirement. (Tr.
43-44)

The Union submitted a proposal to
Dr. Clifford, which stated the following:

DLIFLC should also recognize those
Charter Members of the FPS who displayed initiative and took a risk
in initially joining the FPS at its inception. Many of the
original class of FPS who, by virtue of their GS-11 or GS-12 rank,
have been advance{d} to a higher rank without competition.
However, several members have been left behind in the salary
advancement.

As of March 19, 2004 six Charter
Assistant Professors and five Charter Associate Professor members
have reached the top of their respective pay bands. This fact
shows that these people have superior performance within the FPS
allowing them to reach the top of the payband within seven to eight
years. But as the situation is now, they will not receive full
increases to their base salaries even though their performance
indications (sic) a minimum of superior achievement.

The Union suggests the following
criteria for advancement for current and former FPS
members:

• They are at the top of their
payband.

• They have received at least six
points or more each year over the past three years.

• They have had no adverse
disciplinary actions taken against the{m} since the inception of
the FPS.

• They are tenured
faculty.

Most if not all of these faculty
members are likely at or near the end of their federal government
careers. Their pioneering achievement should be recognized and
rewarded. Perhaps more so than those advanced because of their
last GS salary, these few FPS members have made significant and
meaningful contributions to the FPS, DLIFLC and to the Defense
Foreign Language Program.

(G.C. Ex. 6; Tr. 44-45)

Apparently, there were several
meetings between the Union and Dr. Clifford on this issue, although
there is little specific evidence regarding any of these
discussions. According to Khalil, on December 1, 2004, after a
training session for the merit pay board, Dr. Clifford told Khalil
that they (the Respondent) would move "the faculty at the top of
the band administratively to the next higher band." Dr. Clifford
did not include any criteria, but just agreed to promote or move
the charter members at the top of their pay band to the next higher
pay band. (Tr. 46, 112-113)

Dr. Clifford explained that his
primary reason for the agreement was because charter members had
been promised that they would not be financially disadvantaged by
joining the system. The second reason was a desire to have
internal consistency that would allow DLI to defend the
adminis-trative rank advancement. (Tr. 114) The third reason
concerned management's failure to run the competitive rank
advancement process on a routine basis. As the fourth reason, Dr.
Clifford also felt that DLI had set its criteria for rank
advancement too high. And finally Dr. Clifford asserted that any
accommodation made for charter members would be automatically
self-correcting as part of the transition to the FPS. (Tr.
115-116)

Neither Dr. Clifford or Khalil put
this agreement in writing. According to Khalil, when Dr. Clifford
agreed to something, the Union believed it would be implemented.
Dr. Clifford's word was final and respected. (Tr. 48,
79)

Merit Pay Presentations in January
2005

Under the FPS, Dr. Clifford held
meetings with the faculty to discuss merit pay in January of each
year. The meetings are scheduled for all of the faculty in groups
by schools. Generally, Khalil addresses the employees and then Dr.
Clifford gives a merit pay presentation. In January 2005, Dr.
Clifford gave several merit pay presentations, using slides to
discuss the various issues in FPS. One of the slides on page 3 of
R. Ex. 1, "Estimated Allocation of Merit Pay" and under "Special
considerations", stated, "Some Charter FPS Members will be advanced
in rank to maintain pay comparability with their prior GS status."
(R. Ex. 1) This slide apparently referenced the previous
administrative rank advancement that took place in 2001. At some,
but not all of the meetings, Dr. Clifford used this slide to
mention the new advancements, stating that charter members at the
top of their pay band would be administratively advanced to the
next band. There was not much discussion, if any, at the meetings,
although some employees did ask Khalil about the announcement.
(Tr. 48-49, 51-52, 123)1966079046

Implementation of
Agreement

Dr. Clifford retired from DLI
immediately after the merit pay meetings, in early January 2005.
Also in January, faculty under FPS received letters detailing their
merit pay and bonus for the year. The Union was concerned about
the implementation of the administrative advancement for the
employees at the top of the band, and arranged a meeting with Dr.
Stephen Payne, Acting Chancellor, on January 28. At the meeting
Khalil and Dr. White informed Dr. Payne that the Union had an oral
agreement with Dr. Clifford that charter members at the top of the
pay band would be administratively advanced. Dr. Payne had not
heard anything about this agreement and was not aware of the
agreement. He asked if Khalil had anything in writing, and Khalil
indicated that they did not have the agreement in writing but they
had reached agreement. Khalil suggested that Dr. Payne get in
touch with Dr. Clifford and ask him about the agreement. (Tr.
53-55, 283-287)

Dr. Payne then said that there was
nothing in the slides at the briefings to indicate the agreement.
Khalil said that Dr. Clifford made the announcement when he got to
the slide about administrative rank advancement, and briefly
mentioned that charter members at the top of the pay band would be
advanced to the next higher rank. (Tr. 123)

Dr. Payne told the Union officials
that if he had known about the agreement, he would have quashed it.
He indicated that this type of agreement could only be done with
the Assistant Commandant. Khalil responded that the Union had
never discussed anything like this with the Assistant Commandant,
and that FPS issues, agreements and implementation were always with
Dr. Clifford. (Tr. 53-55)

On February 11, 2005, Khalil sent a
letter to Dr. Payne asking if he had contacted Dr. Clifford, and to
inform the Union. (Jt. Ex. 8; Tr. 56)

On February 14, 2005, Dr. Payne
responded, reiterating his position and asking for a written
agreement and documentation. (G.C. Ex. 7; Tr. 56)

Khalil also contacted Dr. Clifford,
explaining what was happening at DLI. (G.C. Ex. 8; Tr. 58-59, 125)
Khalil later received an email response from Dr. Clifford, who
apologized for the confusion and indicated he was still looking
into the issue. (G.C. Ex. 9; Tr. 59)

While Dr. Clifford was at DLI, the
Union only dealt with him or his staff, including Esther Rodriguez,
Faculty Personnel Administrator, on FPS issues (Tr. 32-33, 61, 81).
The Union met with Dr. Clifford almost monthly on FPS matters.
(Tr. 33) The Union further asserted that it never dealt with the
Commandant or the Assistant Commandant on FPS issues, or that it
was ever informed that Dr. Clifford did not have the authority over
FPS matters. (Tr. 33, 62)

The Union filed the unfair labor
practice charge in this matter on March 9, 2005. (G.C. Ex.
1(a))

Charter members who have reached
the top of their pay bands have not been administratively rank
advanced at DLI. According to Khalil, he initially thought only
about eleven charter members would benefit from the agreement (Tr.
63), although he admitted the agreement could conceivably effect
every charter member. (Tr. 64) He also agreed that there were no
limitations on the number of times an employee could be
administratively promoted.

Issue

Whether or not the Respondent
violated section 7116(a)(1) and (5) of the Statute by failing to
and refusing to comply with the provisions of an oral agreement
entered into by Dr. Clifford and the Union.

Positions of the Parties

General Counsel

The General Counsel (GC) asserts
that the evidence clearly establishes that in December 2004, Dr.
Clifford, the Respondent's Chancellor, agreed with the Union to
administratively rank advance charter members who reach the top of
their pay bands. This action would have been effected with the
merit pay increases disseminated to all FPS faculty members in
January 2005. It is undisputed that the Respondent did not
implement the terms of this agreement and has not provided for
charter members who have reached the top of their respective pay
bands to be administratively rank advanced. The GC therefore
asserts that the only issues in this matter are: 1) Whether Dr.
Clifford had the authority to enter into the subject agreement with
the Union; and if so, 2) What should be the remedy for the
Respondent's refusal to comply with the agreement?

With regard to the agreement, the
GC asserts that the parties reached this oral agreement after
discussions between Dr. Clifford and the Union representatives,
Alfie Khalil and Phil White. Further, it is well founded that an
oral agreement may be binding on the parties, citing toU.S. Department of Defense Dependents Schools and
Federal Education Association,55 FLRA 1108
(1999) (DoDDS).

The GC further asserts that the
terms of the oral agreement between Dr. Clifford and the Union are
clear and unambiguous providing that charter members who reach the
top of their pay bands will be administratively rank advanced.
Both the Union and the Agency representatives are of one mind as to
the specific terms of their oral agreement, distinguishable
fromDepartment of the Interior,
Washington, D.C. and Bureau of Indian Affairs, Washington, D.C. and
Flathead Irrigation Project, St. Ignatius, Montana,31 FLRA 267 (1988) (Despite the union
representative's belief that the management representative had
agreed to make the call-back pay retroactive to a date a year
earlier, the Authority found that the management representative's
words were sufficiently ambiguous as to preclude finding that a
meeting of the minds had occurred.)

Therefore, the GC asserts that,
consistent with the duty to bargain in good faith under the
Statute, the Respondent committed an unfair labor practice by
refusing to comply with the provisions of this negotiated
agreement. See Department of Defense,
Warner Robins Air Logistics Center, Robins Air Force Base,
Georgia, 40 FLRA 1211 (1991)
(Robins AFB)
(Refusal to comply with ground rules agreement to assign union's
negotiator to day shift was a ULP.)

The GC further asserts that, as
Chancellor, Dr. Clifford had the authority to enter into this
agreement on behalf of the Respondent. The GC asserts that the
Respondent's attempts to show Dr. Clifford did not have authority
to enter into this agreement were primarily testimony by
representatives who felt that rank advancing charter members who
reached the top of their pay scale significantly altered the FPS
system, was contrary to the merit principles underlying FPS, would
result in unqualified individuals being promoted and would fill up
the professor and associate professor ranks. The GC asserts that
whether the Respondent's witnesses disagreed with the agreement is
not a basis to find it unenforceable. If Dr. Clifford had
authority to enter into that agreement, real or apparent, then the
agreement binds the Respondent, regardless of the Commandant or Dr.
Payne's personal objections to the terms of the agreement.
See American Federation of Government
Employees, Local 2207 and U.S. Department of Veterans Affairs,
Medical Center, Birmingham, Alabama, 52
FLRA 1477, 1479 (1997) (AFGE);Great Lakes
Program Service Center, Social Security Administration, Department
of Health and Human Services, Chicago, Illinois, 9 FLRA 499 (1982).

Agreement does not significantly
alter FPS

Although the Respondent argues that
the change is of such magnitude that it essentially rewrites the
FPS and thus required higher level approval, the GC asserts that
the agreement is consistent with the FPS as it has been implemented
by the Respondent. To Dr. Clifford, the new agreement was
necessary to ensure that the promises of the Transition Agreement
were met. Further, Dr. Clifford viewed the agreement as consistent
with the administrative rank advancement policy which had been in
place since 2001, a policy which had already rank advanced over 100
employees without regard to their academic "qualifications",i.e., whether they had a
PhD to be promoted to professor or an M.A. to be promoted to
associate professor. That policy was considered competitive,
particularly when one considered that FPS members move up the pay
band based on their performance and that only high performers will
reach the top of the band. The new administrative rank advancement
is consistent with other modifications Dr. Clifford made to the FPS
during its lifetime, such as giving pay adjustments to those hired
at the lower end of the ranks in the early years, or giving pay
adjustments to faculty members who were advanced through the
competitive rank advancement process.

Agreement is consistent with Dr.
Clifford's authority to manage the FPS program and should be found
enforceable.

The GC submits that the record
evidence clearly establishes that Dr. Clifford had full authority
to run the FPS program from its beginning, whether through actual
or implied delegation from the Commandant at the time FPS was
implemented, and that for the next seven years, through the terms
of several Commandants, Dr. Clifford routinely exercised this
authority. There was no evidence of any attempts to question or
circumscribe Dr. Clifford's authority. Although the Commandant is
the Chancellor's superior and could have questioned his actions,
there is no evidence that this was ever done. Therefore, there is
no basis to conclude that Dr. Clifford did not have the authority
he understood and represented to the Union.

Regardless of his actual authority,
Dr. Clifford acted with apparent authority to negotiate and enter
into agreements to bind the Respondent.

The uncontroverted testimony of
Alfie Khalil and Phil White establishes that from the time FPS was
implemented at the Respondent in 1997, and until his retirement in
January 2005, the Union dealt only with Dr. Clifford or with the
Chancellor's staff, on all matters concerning the FPS. Further, at
all times the Union representatives understood that Dr. Clifford
had full authority to negotiate and enter into agreements on behalf
of the Respondent on matters concerning FPS. In the instant case,
the evidence is clear that Dr. Clifford possessed authority to act
on behalf of the Respondent concerning all matters involving FPS,
including resolution of grievances and negotiation of agreements,
and that the Union reasonably believed Dr. Clifford to have the
authority to enter into the agreement providing rank advancement of
charter members involved in this case.

Respondent's suggestion that Dr.
Clifford agreed to administrative rank advancement for faculty at
the top of their pay scale as a reward for Khalil and White's
support is completely specious.

The GC further argues that the
Respondent's suggestion that Dr. Clifford agreed to the rank
advancement for charter members as a gratuitous "gift" to Alfie
Khalil and Phil White for having supported Dr. Clifford during his
long tenure, is simply without any foundation and must be rejected
out of hand. As Dr. Clifford's testimony makes clear, agreement to
the administrative rank advancement was not "rewarding" his friends
or supporters, but was keeping a promise he made in 1996 in the
Transition Agreement to those faculty members who took the risk
with an untried system that they not be financially disadvantaged
by having taken that risk. If administrative rank advancement was
acceptable for FPS charter members whose former GS salary exceeded
their FPS salary as a reflection of their meritorious performance,
then it was equally or more applicable to those charter members
who, by virtue of exemplary performance, had advanced so rapidly to
the top of their pay band.

Remedy

The GC asserts that the appropriate
remedy in this matter is to require the Respondent to comply with
the agreement into which it entered. Respondent's failure to
comply with its agreement meant that faculty members who reached
the top of their pay bands as of January 2005 were not
administratively rank advanced; this affected the amount of their
base pay during all of 2005, thereby affecting the amount they
contributed to TSP or, if any affected faculty members retired,
their high three salary for purposes of retirement under CSRA; and
it affected their bonuses in 2006 since merit pay is based on the
percentage of base pay. As to the faculty who should have been
rank advanced in 2006, at this point in time, their total salary,
including bonus, would not have changed; however, the failure to do
the rank increase has affected the amount of that total salary that
would be allocated to base salary and thus, has affected their
contributions to TSP, the amount of pay for retirement, and any
other purposes for which base pay is used to compute
benefits.

Thus, Respondent's failure to
comply with its enforceable agreement constituted an "unjustified
or unwarranted personnel action which has resulted in the
withdrawal or reduction of all or part of the pay, allowances, or
differentials of the employee" under the Back Pay Act, 5 U.S.C.
5596,, and the Respondent should be ordered to make faculty members
whole for all pay and benefits lost as a result of the Respondent's
unlawful action, including the opportunity to contribute to TSP or
any other contribution based on base pay.

Respondent

The Respondent asserts that there
was not an enforceable agreement entered into between the Union and
the Respondent for several different reasons. Specifically, the
Respondent takes the position that Dr. Clifford did not have the
authority to make an agreement of such magnitude without approval
from higher authority within the organization. There is also a
lack of a "clear and unambiguous" agreement between the parties
concerning the alleged agreement, as well as a failure to reduce
the alleged agreement to writing upon the request of Respondent's
representative once the alleged agreement was finally made "public"
by the Union. Further, the Respondent asserts that the "agreement"
reached between the Union and Dr. Clifford was of such a nefarious
nature that it was clearly done for personal, and not management or
government interests. As such, there was no "good faith"
bargaining (at least on the part of management) on this matter,
thus preventing any legitimacy to any agreement reached.
Furthermore, the rationale repeatedly offered at hearing as the
justification for this "agreement" is obviously of a pretextual
nature. Instead, it is apparent that the "agreement" allegedly
made by Dr. Clifford appears to be an attempt by Dr. Clifford to
provide promotions to a number of FPS employees who are either not
qualified for promotion under the FPS or who were qualified for
promotion but were not previously selected for
promotion.

Lack of Written
Agreement.

The Respondent asserts that,
pursuant to section 7114(b)(5) of the Statute, there is an
obligation to execute a written document that embodies the agreed
terms of an agreement reached through good faith bargaining. In
this matter, no written document was ever produced despite several
requests from the Respondent. The Authority has consistently held
that when a bilateral agreement is reached, there is a need to
execute a written agreement to ensure there was in fact a "meeting
of the minds" on the issue in question. See International Organization of Masters, Mates and Pilots
and Panama Canal Commission, 36 FLRA 555
(1990). Both Parties had previously ensured that various
agreements were reduced to writing (See Jt. Exs. 4, 5, 6, and 7),
and there is no justification for their failure to do so in this
matter.

Lack of Authority.

Citing toU.S. Small Business Administration and American Federation of
Government Employees, Council 228, Local 2532, 38 FLRA 386 (1990) (SBA), the Respondent asserts that
this case is analogous to the instant matter, although noting the
behavior in theSBAcase is much more egregious. In theSBAcase, the Authority found that an
agency official acted without authority in entering into a
settlement agreement on behalf of the agency. There, the
settlement was clearly detrimental to the agency and there was no
communication with the agency on the terms of the settlement and
the terms of the agreement clearly exceeded the authority of the
management official acting on behalf of the agency in the
settlement.

Here, there is strong similarity in
the outcome of the "bargaining" that took place in both matters.
The evidence clearly shows that the "agreement" reached had
virtually no benefit for DLIFLC. The agreement was made as a
reward to certain charter members. Further, Dr. Clifford made this
agreement in very close proximity to his separation from the agency
and made no attempt to communicate the alleged changes to any
DLIFLC senior management prior to his retirement. And according to
Jerry Merritt, a former contractor at DLI, none of the normal
procedures used for analyzing changes to the FPS were utilized
prior to the alleged agreement on the modification to the Charter
Member Administrative Rank Advancement system. (Tr.
186-187)

Lack of Clear and Concise
Agreement.

The Respondent also asserts that
there continue to be significant questions as to the exact nature
of the agreement. The Authority has consistently held that an
agreement must be a "meeting of the minds" in order to be enforced.
IRS and NTEU Chapter
87, 55 FLRA 223 (1999). The Respondent
notes that the ambiguity of the agreement is apparent from the
testimony of Khalil and Dr. Clifford. In G.C. Ex. 9, Dr. Clifford
writes in an email that ". . . I am still working on this, and have
requested some data reports so the discussion can be based on real
numbers rather than impressions." The final impact of the alleged
agreement was not clear to either party.

Contradictory
evidence.

The Respondent finally asserts that
contradictory testimony and unusual actions taken by the Union and
Dr. Clifford show a lack of good faith on the part of Dr. Clifford
in representing management when the alleged agreement was reached.
The Respondent notes the serious disagreement between various
witnesses with exactly what Dr. Clifford stated to the faculty in
the various Merit Pay presentations in January 2005. Further Dr.
Clifford testified that there would be no negative effect upon
DLIFLC by the agreement, although there was ample evidence from
other witnesses to the contrary, particularly with regard to the
agreement undercutting the underlying philosophy of the FPS as a
competitive system.

Analysis and Conclusion

The two primary issues to be dealt
with in this case are whether Dr. Clifford had actual or apparent
authority to enter into an agreement with the Union on behalf of
the Respondent, and, if so, whether the agreement was such that the
Respondent was obligated under the Statute to abide by
it.

Actual
or apparent authority.

I will first deal with the issue of
whether Dr. Clifford, as Chancellor, had the authority to enter
into the agreement with the Union to administratively advance
charter members who were at the top of their rank to the next
position. Both the GC and the Respondent correctly cite to the
Authority's decision inSBA, in which the Authority discussed
agency:

It is well settled that a question
of whether a settlement agreement is enforceable is a question of
law. See,for example,McCall v. U.S. Postal Service, 839 F.2d 664 (Fed. Cir. 1988). Accordingly, the findings and
conclusions of the Arbitrator are entitled to no deference. We
must resolve the question of law as to whether Stanton had the
authority to bind the Agency to the terms and conditions of the
settlement agreement.

It is also well settled that the
United States is not bound by the unauthorized acts or
representations of its agents. For
example,Federal
Crop Insurance Corp. v. Merrill, 332 U.S.
380, 384-85 (1947) (Merrill). See generallyOffice of Personnel Management v. Richmond, 110 S. Ct. 2465, 2469-71 (1990). When the terms and
conditions of an agreement with the Federal Government are disputed
by the Government, those terms and conditions are not valid in the
absence of proof that the agent had the actual authority to agree
to such terms and conditions. SeeJackson
v. United States, 573 F.2d 1189, 1197 (Ct.
Cl. 1978) (Jackson). Individuals who purport to contract with the Government
assume the risk that the official with whom they are dealing is not
clothed with the actual authority to enter into the alleged
agreement. Merrill, 332 U.S. at 384. Moreover, the Government is not estopped to
deny the authority of its agents. Jackson, 573 F.2d at 1197.
Consequently, there can be no relief from any negative consequences
flowing from assurances that an agent was not authorized to make.
For example,Bollow v. Federal Reserve Bank of
San Francisco, 650 F.2d 1093, 1100 (9th
Cir. 1981). Furthermore, the doctrine that principals may be bound
by the acts of their agents acting in violation of specific
instructions is not applicable to the acts of an officer of the
Federal Government. United States v.
45.28 Acres of Land, etc., 483 F. Supp.
1099, 1102 (D. Mass. 1979) (Acres of
Land). The courts have explained the
reasoning for this approach to be that it is better for an
individual to suffer from mistakes of such officers than to adopt a
rule which by collusion or otherwise might result in detriment to
the public. Acres of
Land, 483 F. Supp. at 1102. In sum, the
U.S. Supreme Court has stated that the often quoted observation
inRock Island, Arkansas & Louisiana
L. R. Co. v. U.S., 254 U.S. 141, 143 (1920)
that "[m]en must turn square corners when they deal with the
Government," does not reflect a callous outlook, but merely
expresses the duty of all courts to observe the conditions defined
by Congress for charging the public treasury. Merrill, 332 U.S. at 385.

38 FLRA at 406-407.

The evidence reflects that Dr.
Clifford, as Chancellor, was responsible for the FPS program from
its inception in 1997 until his retirement in January 2005. During
those seven years, he had full authority over the FPS program. Dr.
Clifford's own performance evaluation reports related that, among
his many duties, he had the responsiblity to oversee "the operation
of the Faculty Personnel System to insure its support of Institute
goals and mission accomplishment." (G.C. Exs. 2 and 3)

From the implementation of the FPS,
Dr. Clifford was the individual that the Union dealt with regarding
the various issues that arose. Even before implementation, Dr.
Clifford entered into the Transition Agreement with the Union that
was specifically designed for the protection of those employees who
left the GS system to become charter members of the FPS. These
transition agreements (Jt. Exs. 5, 6 and 7) were the foundation of
the processing of the FPS program at DLI and Dr. Clifford
referenced the Respondent's need to ensure that those charter
members "should not be financially disadvantaged". Further, Dr.
Clifford entered into settlement agreements for grievances
involving issues related to the processing of the FPS and how it
affected various bargaining unit employees. These settlement
agreements were with the Union and Dr. Clifford was decidedly the
designated management official involved in these matters. The FPS
was a program that required adjustments and fine-tuning as it was
implemented. There is no evidence that the Commandant, as the
Chancellor's superior and as commander, ever questioned Dr.
Clifford's actions or his authority until after his
retirement.

The facts in this case are
distinguishable from the actions of the manager in theSBAcase. In that case
the Authority found the manager lacked actual authority to bind the
Agency to the terms and conditions of a settlement agreement. The
agreement provided, among other things, for the promotion of eight
employees, seven retroactively with back pay and three with
multiple promotions; reversed several disciplinary actions with
backpay and admissions of wrongdoing by the agency; awarded
extraordinary monetary compensation to the Union, and also granted
specific relief to one of the union representatives and a signatory
to the agreement. The settlement agreement also called for the
Union to represent the manager in an impending agency disciplinary
action and required that he not be held responsible for the terms
and conditions of the agreement. The Authority, understandably,
found this conduct unreasonable and determined that the manager had
no actual or apparent authority to enter into the settlement
agreement.

The conduct of Dr. Clifford in
reaching the agreement at issue in this matter, based on the
analysis above, is not comparable to that found inSBA. Rather his position
is more similar to that found inAFGE, 52 FLRA 1477, in which the
Authority found that the union's vice president had been appointed
to negotiate an agreement and therefore had apparent authority.
The Authority further found that the vice president's authority had
not been terminated and he continued to exercise his
authority.

As the Authority stated in that
decision:

In an agency relationship a
principal confides to an agent the management of business to be
transacted in the former's name. Seegenerally3 Am. Jur. 2dAgency§ 1 (1986). The
authority of an agent to act on behalf of the principal can be
either actual or apparent. Actual authority is authority that the
principal has intentionally conferred upon the agent.
See,for example,U.S. v. Schaltenbrand,
930 F.2d 1554, 1560 (11th Cir. 1991). Apparent authority occurs
where the principal has held out the agent as having such authority
or has permitted the agent to represent that he has such authority.
3 Am. Jur. 2dAgency§ 78 (1986). It has been held that "when an agent is
appointed to negotiate a collective-bargaining agreement that agent
is deemed to have apparent authority to bind his principal in the
absence of clear notice to the contrary." Metco Products, Inc. v. NLRB, 884
F.2d 156, 159 (4th Cir. 1989) (Metco) (citingUniversity of Bridgeport, 229 NLRB
1074 (1977)).

Authority will be terminated if the
agent is given sufficient notice. 3 Am. Jur. 2dAgency§ 51 (1986).
Sufficient notice occurs if the agent actually knows, or has reason
to know, facts indicating that the authority has been terminated.
Id. However, the
acts of an agent whose authority has been revoked may continue to
bind a principal as against third persons who, in the absence of
notice of the revocation of the agent's authority, rely upon its
continued existence. 3 Am. Jur. 2dAgency§ 52 (1986).
SeeSouthwest Sunsites, Inc. v.
F.T.C., 785 F.2d 1431, 1438 (9th Cir. 1986)
(a principal is bound by the acts of its agent if those acts are
within the scope of the agent's authority, unless the third party
has actual notice that the acts are unauthorized).

55 FLRA at 1480, 1481.

In reviewing the evidence before
me, I find that Dr. Clifford had actual authority to enter into the
agreement in question with the Union. This actual authority is
found in the DoD regulation as well as the parties' Handbooks
setting forth the procedures for implementing FPS. Further, the
evidence reflects that Dr. Clifford exercised this authority for
the entire time that the FPS was in effect and until his retirement
from DLI.

Even if Dr. Clifford did not have
actual authority, he had the apparent authority to bind the
Respondent. As noted above, the Union dealt exclusively with Dr.
Clifford on FPS issues on a regular and ongoing basis. Dr.
Clifford was the primary DLI contact on all matters dealing with
FPS since its inception. There is no evidence that the Respondent
ever discredited Dr. Clifford's authority, or even tried to lessen
it.

Validity of Agreement

In my view, the record evidence
establishes that Dr. Clifford entered into an agreement with the
Union regarding the administrative rank advancement of charter
members at the top of their pay band to the next rank. The GC
witnesses, Union President Kahlil, Drs. White and Clifford, all
credibly testified regarding the presentation of the issue and the
agreement reached in December 2004. Even Respondent's witnesses
acquiesced in the knowledge that an agreement had been reached,
although they universally testified that they were unaware of the
agreement until after Dr. Clifford retired.

The terms of the agreement were
also quite clear: that charter members at the top of their pay
band would be administratively rank advanced to the next
rank,i.e.,
assistant professor to associate professor and associate professor
to professor. There were no other conditions for the
agreement.

It is also clear that the agreement
was oral, and was never reduced to writing. Section 7114(b)(5) of
the Statute states:

(b) The duty of an agency and an
exclusive representative to negotiate in good faith under
subsection (a) of this section shall include the
obligation-

. . .

(5) if agreement is reached, to
execute on the request of any party to the negotiation a written
document embodying the agreed terms; and to take such steps as are
necessary to implement such agreement.

The Respondent argues that since it
requested, but was never furnished, the agreement in writing, that
the agreement cannot be valid. However, the evidence reflects that
neither Dr. Clifford nor the Union officials felt a written
agreement was necessary and it was not reduced to
writing.262281626
It was only after Dr. Clifford retired and the Union spoke to Dr.
Payne about enforcement of the agreement, that a written copy was
requested. By then, it was not possible to furnish a written
agreement.

It is well settled that an oral
agreement may be binding on the parties. InDoDDS, the Authority
stated:

Under section 7114(b) of the
Statute, the duty of an agency and an exclusive representative
includes the obligation to negotiate "with a sincere resolve to
reach a collective bargaining agreement[.]" If an agreement is
reached, then the parties are obligated, "on the request of any
party" to the negotiations, to execute a written document embodying
the agreed terms. 5 U.S.C. § 7114(b)(5). SeeU.S.
Department of Transportation, Federal Aviation Administration,
Standiford Air Traffic Control Tower, Louisville,
Kentucky, 53 FLRA 312, 317 (1997)
(Standiford Air Traffic Control
Tower), and cases cited therein. An
"agreement," within the meaning of section 7114(b)(5) of the
Statute, is reached when authorized representatives of the parties
come to a meeting of the minds on the terms over which they have
been bargaining. Panama Canal
Commission, 36 FLRA at 560.

Although parties are required, on
request, to reduce to writing any oral agreement they have reached,
the fact that an agreement need only be reduced to writingwhen requestedimplies
that a written agreement is not always necessary. Consistent with
this, the Authority has held that parties may enter into oral
agreements, and that such agreements bind the parties.
See, e.g., Standiford Air Traffic Control
Tower, 53 FLRA at 317. Contrary to the
assertion of the Agency,Panama Canal
Commissiondid not establish a rule that
only written agreements may bind the parties. InU.S. Department of the Treasury, Bureau of
Engraving and Printing and International Plate Printers, Die
Stampers and Engravers Union, Washington Plate Printers Union,
Local 2, 44 FLRA 926, 940 (1992)
(DOT), the
Authority upheld the arbitrator's finding that the parties had
entered a binding, "tacit" agreement. In so holding, the Authority
distinguishedPanama Canal
Commissionon the ground that there was no
finding by an arbitrator in that case that the parties had entered
any sort of agreement. Consistent with the Authority precedent set
forth above, parties may be bound by their oral, or even "tacit,"
agreements.

55 FLRA at 1108.

Since it is obvious that an oral
agreement can, in fact, be an agreement that the Respondent is
obligated to implement/enforce, the next question in this matter is
whether the agreement is clear and unambiguous.
Internal Revenue Service, North Florida
District, Tampa Field Branch, Tampa, Florida, 55 FLRA 222 (1999). (Preponderance of the evidence
demonstrates that the parties did not reach agreement on a term of
the MOU that both regarded as material, therefore, no violation).

In this matter, the Union and Dr.
Clifford were of one mind as to the specific terms of their oral
agreement. There is no evidence that the parties discussed which
specific employees would be directly impacted by this oral
agreement, although it appears that both Khalil and Dr. White would
benefit from the agreement. Although some projections were run,
the parties did not discuss specific numbers of employees to be
involved. However, these failures cannot overcome the evidence
that the parties had a simple agreement that charter members who
had reached the top of their pay band would be administratively
rank advanced.

While the Respondent disagrees with
the wisdom of this agreement, there is no evidence that this
agreement is not consistent with prior agreements reached by Dr.
Clifford and the Union regarding the implementation of the FPS or
that it is not consistent with the way in which the FPS has been
implemented at the DLI. Further, this oral agreement is entirely
consistent with the Transition Agreements that have been in place
since the inception of the FPS and which specifically set forth the
guiding principle that "FPS Charter members who consistently meet
performance expectations should not be financially disadvantaged
for having left the GS system in either total annual or base pay."
(Jt. Ex. 5)

I therefore reject the Respondent's
arguments that there are significant questions as to the exact
nature of the agreement. Rather, I find that the oral agreement is
clear and concise and the Union and the Respondent were of one mind
as to the specific terms of their agreement. By refusing to comply
with the provisions of this negotiated agreement, the Respondent
committed an unfair labor practice. See
Robins AFB,40 FLRA 1211. (Refusal to
assign a designated union negotiator to the day shift pursuant to
an agreement between the parties.)

Remedy

I further find that the appropriate
remedy in this matter is to require the Respondent to comply with
the oral agreement. Robins AFB.
Since the Respondent's failure to comply
with its agreement meant that charter members who reached the top
of their pay band as of January 2005 were not administratively rank
advanced, this affected the amount of their base pay during all of
2005. Further, this affected the amount they could contribute to
TSP or if any affected faculty members retired, their high three
salary for purposes of retirement under CSRA; and it affected the
bonuses in 2006 since merit pay is based on the percentage of base
pay. For faculty who should have been rank advanced in 2006, their
total salary would not have changed; however, the failure to do the
rank increase has affected the amount of that total salary that
would be allocated to base salary and thus, has affected the amount
contributed to TSP, the amount of pay for retirement, and any other
purposes for which base pay is used to compute benefits.

Respondent's failure to comply with
its enforceable agreement constitutes an "unjustified or
unwarranted personnel action which has resulted in the withdrawal
or reduction of all or part of the pay, allowances, or
differentials of the employee" under the Back Pay Act, 5 U.S.C. §
5596,United States Department of Homeland
Security, Border and Transportation, Security Directorate, Bureau
of Immigration and Customs Enforcement, Philadelphia District,
Philadelphia, Pennsylvania, 60 FLRA 993
(2005). The Respondent, therefore, is ordered to make faculty
members whole for all pay and benefits lost as a result of its
unlawful action, including the opportunity to contribute to TSP or
any other contribution based on base pay. Such back pay should
include interest. Department of the
Interior, Bureau of Reclamation Washington, D.C. and Department of
Interior, Bureau of Reclamation, Lower Colorado Regional Office,
Boulder City, Colorado, 33 FLRA 671
(1988).

Having found that the Respondent
violated the Statute by refusing to implement the December 2004
oral agreement, I recommend that the Authority issue the following
Order.

ORDER

Pursuant to § 2423.41(c) of the
Rules and Regulations of the Authority and § 7118 of the Federal
Service Labor-Management Relations Statute (Statute), it is hereby
ordered that the Department of Defense, Defense Language Institute,
Foreign Language Center, Monterey, California, shall:

1. Cease and desist
from:

(a) Failing and refusing to
implement the agreement reached by Chancellor Ray Clifford and
representatives of the American Federation of Government Employees,
Local 1263, AFL-CIO (Union) in December 2004 which provides that
FPS charter members who reached the top of their pay bands will be
administratively rank advanced.

(b) In any like or related
manner, interfering with, restraining, or coercing its employees in
the exercise of their rights assured by the Statute.

2. Take the following affirmative action:

(a) Implement the agreement
reached by Chancellor Ray Clifford and representatives of the Union
to administratively rank advance FPS charter members who reach the
top of their pay bands, retroactive to January 2005.

(b) In accordance with the Back
Pay Act, 5 U.S.C. § 5596, make whole all eligible charter members
for salary and benefits lost as a result of the Respondent's
failure to implement the agreement in January 2005. This will
include,inter alia, providing eligible charter members the opportunity to
contribute retroactively to TSP, and providing pay adjustments for
any eligible charter members who retired since January
2005.

(c) Post at its facilities,
where bargaining unit employees represented by the Union are
located, copies of the attached Notice on forms to be furnished by
the Authority. Upon receipt of such forms, they shall be signed by
the Commandant, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that
such Notices are not altered, defaced or covered by any other
material.

(d) Pursuant to § 2423.41(e) of
the Rules and Regulations of the Authority, notify the Regional
Director of the San Francisco Region, Federal Labor Relations
Authority, in writing, within 30 days of the date of this Order, as
to what steps have been taken to comply.

Issued, Washington, DC, September
29, 2006

SUSAN E. JELEN

Administrative Law Judge

NOTICE
TO ALL EMPLOYEES

POSTED BY ORDER OF

THE FEDERAL LABOR RELATIONS
AUTHORITY

The Federal Labor Relations
Authority has found that the Department of Defense, Defense
Language Institute, Foreign Language Center, Monterey, California,
violated the Federal Service Labor-Management Relations Statute
(Statute) and has ordered us to post and abide by this
Notice.

WE HEREBY NOTIFY OUR EMPLOYEES
THAT:

WE WILL NOT fail or refuse to
implement the agreement reached by Chancellor Ray Clifford and
representatives of the American Federation of Government Employees,
Local 1263, AFL-CIO (Union) in December 2004 which provides that
FPS charter members who reach the top of their pay bands will be
administratively rank advanced.

WE WILL NOT, in any like or related
manner, interfere with, restrain or coerce our employees in the
exercise of their rights assured by the Statute.

WE WILL implement the agreement
reached by Chancellor Ray Clifford and representatives of the Union
to administra-tively rank advance FPS charter members who reach the
top of their pay bands, retroactive to January 2005.

WE WILL make whole all eligible
charter members for salary and benefits lost as a result of our
failure to implement the agreement in January 2005, in accordance
with the Back Pay Act, 5 U.S.C. § 5596. This will include,inter alia, providing
eligible charter members the opportunity to contribute
retroactively to TSP, and providing pay adjust-ments for any
eligible charter members who retired since January 2005.

_______________________________

(Agency)

Dated: ______________ By:
_______________________________

(Signature) (Title)

This Notice must remain posted for
60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material.

If employees have any questions
concerning this Notice or compliance with its provisions, they may
communicate directly with the Regional Director, San Francisco
Regional Office, whose address is: Federal Labor Relations
Authority, 901 Market Street, Suite 220, San Francisco, CA
94103-1791, and whose telephone number is: 415-356-5000.

The GC filed a Motion To Strike
Portions of Respondent's Closing Brief on May 9, 2006, in which it
requested that I strike or disregard all references to "facts" in
the Respondent's Closing Brief which are not contained in the
record evidence. The GC cited several instances in which it
asserted that the Respondent's brief contained no citations to the
transcript or exhibits. Having carefully considered the briefs
before me, the GC's motion is granted and I will disregard any
factual references not supported by the record.